Responsible and sometimes critical comment on topical legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
Pro Aequitate Dicere

Tuesday, 24 April 2012

Odd Corners of the Criminal Law - Public Nuisance

Public Nuisance (also known as Common Nuisance) is an offence under common law and it is triable either-way - that is, either summary trial by Magistrates or upon indictment in the Crown Court where there would be a judge and a jury. Public Nuisance and Private Nuisance are also civil wrongs (torts). This is not considered further here.

The offence is defined as follows:

A person is guilty of a public nuisance who (a) does an act not warranted by law, or (b) omits
to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property or comfort of the public, or
to obstruct the public in the exercise or enjoyment of rights common
to all Her Majesty’s subjects.

Over the years, examples of public nuisance have included: obstructing the highway,blasting and quarrying near built-up areas, allowing land to be used as a dump, noisy parties, bomb hoaxes and false calls to emergency services etc.

This definition, which appeared in Stephen's Digest of the Criminal Law (1877), was approved by the House of Lords as recently as R v Rimmington and R v Goldstein [2006] 1 AC 459 (HL), [2005] UKHL 63. Lord Bingham opened his speech by stating - "These appeals, heard together, raise important and
difficult questions concerning the definition and ingredients, today, of
the common law crime of causing a public nuisance. The appellants
contend that, as applied in their cases, the offence is too imprecisely
defined, and the courts' interpretation of it too uncertain and
unpredictable, to satisfy the requirements either of the common law or
of the European Convention on Human Rights. A question also arises on
the mens rea which must be proved to establish the offence."

The two appeals are interesting. (1) Rimmington concerned a person who engaged in a campaign of sending racially abusive hate mail. It was held that this did not fall
within the offence, which only addressed acts or omissions which injured the
public collectively and not series of acts against individuals. (2) Goldstein concerned a person who put salt into a letter as a joke, thus causing an anthrax scare and disrupting the sorting office. It was
held that the defendant did not satisfy the fault element of the
offence, which required that he should reasonably have foreseen the consequences
of his actions.

Lord Bingham discussed the present-day status of the offence. He gave several examples of situations where statutory provisions now existed covering some of the ground covered by public nuisance. In such situations, the statutory offence should be the one charged. For example, there are now many statutory environmental protection offences. "Where
Parliament has defined the ingredients of an offence, perhaps
stipulating what shall and shall not be a defence, and has prescribed a
mode of trial and a maximum penalty, it must ordinarily be proper that
conduct falling within that definition should be prosecuted for the
statutory offence and not for a common law offence which may or may not
provide the same defences and for which the potential penalty is
unlimited." Lord Bingham went on to say that " the circumstances in
which, in future, there can properly be resort to the common law crime
of public nuisance will be relatively rare."

In 2010, the Law Commission consulted on proposals to amend the law - see Simplification of the Criminal Law: Public Nuisance and Outraging Public Decency - Law Co. No. 193In the consultation paper, the Commission was particularly critical about aspects of the definition of this offence. This old-fashioned definition cannot truly be said to be acceptable in a modern system of criminal law. However, that is sometimes the nature of the common law in which the old survives until finally removed by Parliament.
The Commission would prefer to see a replacement statutory offence perhaps with a stipulated maximum penalty.

About Me

I live in Greater Manchester but spend as much time as possible in N. Yorkshire. Politically, closest to the Lib Dems than any other! Life long interest in law about which there is much misinformation and misunderstanding. My blog seeks to look at topical items and their complexities and tries to explain things in a straightforward way. Obiter means "by the way" and my posts are "by the way." I hope that the posts are responsible, balanced and informative but it is for you, the reader, to make up your own mind. I do not seek to persuade you. At all times I will try to speak for fairness - Pro Aequitate Dicere.